from the penny-for-your-thoughts dept

Recently, we learned that Canadian musician Dave Gunning ran into some copyright troubles regarding his latest album, No More Pennies. No, he did not use music or lyrics from any other artist without permission. What he did was something far worse, at least in the eyes of one organization. What he had the audacity to do was include images of the soon-to-be-retired Canadian penny.

When the Royal Canadian Mint caught wind of Dave's tribute album and the timely use of the penny in its artwork, it sent a legal threat to Dave stating that he was infringing the copyright of the Mint and that he must pay a royalty on each album sold. Of course, the Mint did decide to give him a break on this royalty by waving the fees on the first 2000 albums sold, but said he had to pay after that. That was quite generous, or so the Mint was quick to claim.

“We have helped this guy out by giving him a break,” Alex Reeves, communications manager for the Royal Canadian Mint, said Tuesday.

“Now that we have explained the rules and the policy, it’s very clear what the implications are for using the penny’s image. And we’re certainly being consistent in the applications of our policy for any for-profit use,” he said.

Dave, however, saw things a bit differently.

“It is pennies to them but is pretty substantial for me,” said Gunning, who won two East Coast Music Awards in 2011, adding “we really had no idea” the ode to the penny was going to land him in hot water.

I had to scratch my head for a bit on this little dispute. Here in the US, works of the government are automatically in the public domain and can be freely used by the public. In regards to currency, while it is illegal to create counterfeit currency, it is legal to duplicate the images of currency as long as it is clearly a fake. Things are not quite so clear cut in Canada.

To be clear, the album cover shown above does not infringe any so-called intellectual property rights of the mint because:

If there ever was copyright in the Canadian penny, which is doubtful, it has long since expired and the above album cover would not be infringing copyright in any event

The above album cover does not "use" or "adopt" the Canadian penny in any technical sense covered by the Trade-marks Act.

Someone over at the Mint should learn some basic facts about intellectual property law, This kind of thing makes people lose respect for IP law and for the credibility of government institutions. There’s nothing funny about that.

Knopf points out that the Mint has even attempted similar actions before, when the city of Toronto created an ad campaign which featured an image of the penny. Just as it was then, it is now: the penny, if it was ever covered by copyright, has long since entered the public domain. This is because Crown Copyright only lasts 50 years. This fact, and plenty of negative publicity, lead the Mint to drop its action against Toronto.

The mint did not only waive the fee for Mr. Gunning, but said it would also review its intellectual property policy to ensure that it’s fair.

“We recognize our policy as it is today may not consider the individual needs and circumstances of those who request the use of our images,” spokeswoman Christine Aquino said from Ottawa.

“We’re allowing [Gunning] to do this and we truly wish him well in his career.”

Perhaps this change of heart came about because those running the legal offices of the Mint were reminded that they don't have a solid claim on the copyright of the penny. Even if they did, as Knopf clearly pointed out, Dave's use of the penny in his album work is transformative and as such covered by fair dealing. Either way, Dave is happy to have this saga ended.

“Everything’s gonna taste better now. I’m gonna sleep better,” laughed Mr. Gunning, who said he was overwhelmed by the attention his story had generated across Canada and the United States.

“This all started very simply from the fact that I’ve got a wife and three kids and just want to be able to make a living, and felt that I had to stand up for that.”

All of this raises the question of why a government has any claim of copyright on its currency to begin with. In reality, to claim such a copyright makes no sense. If the concern is that people would attempt to print their own currency, that is what counterfeit laws are for. Otherwise, it seems to be an unneeded burden on the freedom of Canadians.

from the that's-how-it-works dept

One of the common criticisms we hear around here when we talk about the various business models that are working for more and more musicians these days, is that it's somehow "unfair" or even "wrong" that musicians need to think about business models these days, since they should just be spending all their time creating music. Of course, this assumes (incorrectly) that the same thing wasn't true in the past as well. For years, musicians have always teamed up with business managers and music labels for that very reason: to delegate some of the business tasks. That doesn't change in the modern era. What does change is that the different opportunities have grown significantly. Either way, Andrew Dubber (who's always worth paying attention to on these topics) recently put a comment on a blog post on this particular topic that is so good it shouldn't be buried as just a comment, so I'm going to highlight some of the key parts here:

Musicians deserve more money than they get. Most train harder and for longer than brain surgeons in order to do what they do, and then they earn less than checkout operators for what they do. I strongly believe that more money should go to more musicians more often than it does....

Making music is not (usually) a job of work. It is a creative act. You don't have the RIGHT to make money from your music. You only have the opportunity.

If you make music speculatively - that is, you create it in the hopes of making money from it, then you are a music entrepreneur. As such, entrepreneurship rules apply.

You may invest a good deal of energy, effort and expense in your creative ideas. You may make a lot of money. You will probably make none. But nobody OWES you money just because you put the work in.

If your business model is to grow and sell oranges, then it's no good picking the oranges, then leaving them on the footpath outside your house with a price tag on each one. It doesn't matter how great your oranges are, or how hard you've toiled in your garden. Someone WILL take your oranges. Some will get kicked to the side of the road. Some will get stepped on. But it's not because people are immoral and don't understand or appreciate fruit properly.

If you wish to be reliably rewarded for your music, then get employed to make music as your job.

Bingo. That's the point I've been trying to make for years on this, but said much better than I could express it. He then goes on to make another point I've tried to make in the past, which is that if you compare the situation today to what it was in the past, there are so many more opportunities to make money. In the past, it was nearly impossible to make money on music because there were so many gatekeepers.

The odds are stacked against you. History is littered with musicians who are disillusioned, embittered and broke. This was true before the internet just as it's true now. The internet is neither your saviour, nor your enemy.

Let me make that bit clear: prior to the internet, most people spent NO money on music. If they bought a record in a year, it was a gift for a nephew (and it was usually rubbish). Some people spent a lot of money on music, because it was tied up with cultural things like identity that they were really invested in.

Back when you needed a record label to just be heard, it was a lottery. The odds were bad, the lottery tickets were expensive, and most of the prizes - if you did happen to win - were just awful. Now you don't need to play that game - but you need to be smart and you need to understand what the rules of the new game are.

You CAN, of course, get signed to a record label (and that lottery is still in play) but you can also be an entrepreneur. I recommend the latter - but not because it guarantees you money.

But the simple fact is that you don't become a successful entrepreneur by making things that people will not pay for, insisting that they should, and then complaining that their morals are to blame. They may not share your morals, but that's not even the point.

You become a successful entrepreneur by meeting people's needs and wants, solving a problem for them and doing it in a way that allows you to make money.

I've said it before and I'll say it again. Even if it was true that all the people you wish to target with your art are immoral thieves who you would never invite into your home - why would you insist on trying to change their behaviour as part of your business strategy?

And he concludes by pointing out (as we have in the past as well) where the real "sense of entitlement" comes from:

You may make great and interesting music, and put on an amazing show with amazing costumes.... But decrying a sense of entitlement among those who won't pay you for what you insist on doing is back to front.

The people with the weird sense of entitlement are the ones who stamp their feet and say 'look at all this hard work I put in - where's my money?'

from the well,-that's-one-view... dept

I recently listened to an interview with a famed old school reggae musician, who's been in the business for 42 years. The interviewer asked him what kind of music he liked to listen to himself, and the guy said: "All kinds." He explained, by saying that any serious musician should listen to as much music as possible, just to learn from it and build your own skills. So even if he doesn't play country music or symphonies, he tries to listen to them just to gain a better appreciation of them so that he can take some of that and bring it back to his own music. This is a key point in the creative process, which is often missed by those who insist that musical creation is some sort of individual effort that doesn't involve outside influence.

My perspective on file-sharing is probably different that you would expect. I think that your son should download every track he can find. I mean it. Download every song out there and sift through them one by one. And not just the genres he likes -- but everything -- Creole bandeon playing, French rap, hymns, metal, classical, South African jazz, samba -- whatever he can find.... If you're son is really going to be a musician -- I mean make a real, professional try at it -- he's going to need to know every one of those genres.

He goes on to give a number of other reasons to support this position, and it makes for quite a read. Obviously, plenty of musicians disagree with this, and we're not posting this to suggest it's a representative view of musicians. But it's yet another well-argued explanation for why locking up music isn't necessarily in musicians' best interests, despite what some might tell you.

from the not-against-it-at-all dept

Earlier this year, Swedish prosecutors finally filed charges against the Pirate Bay, using some of the evidence given to them by the IFPI. Among that "evidence" was a list of Swedish musicians supposedly "hurt" by file sharing. Apparently the IFPI didn't bother to check with those musicians to see how they felt about this. One Swedish hip hop star stood up to the IFPI pointing out that he has nothing against the Pirate Bay and, in fact, is "pro-file sharing," which is even represented in his music. On top of that, the IFPI doesn't own the rights to his music. Because of this, the IFPI has now had to cut back on how much money they're claiming the Pirate Bay owes them. However, if they did that with one artist, it makes you wonder how careful the IFPI was with other musicians as well.